I can answer this certified question from the Ninth Circuit. With the answer that I believe both the California Supreme Court would give and that the Ninth Circuit's looking for.
Here goes:
The statute provides that when someone violates the California Disabled Persons Act, the plaintiff is entitled to statutory damages of $1,000 "for each offense." Which is fine. But here, the plaintiff sues the City of Long Beach, claiming that at one intersection there was the absence of a "curb cut" and three insufficient curb cuts (as well as tree roots), which he went to once a month, and then says that four times a week during the same continuous period he tried to use an intersection near a bus stop where there were three noncompliant curb cuts. The district court gave him $17,000 in statutory damages. But plaintiff wants $440,000 in statutory damages. All for repeatedly going to the same noncompliant place again and again and again.
Maybe it'd be okay to give him a half a million dollars if there was deliberate misconduct; e.g., if the City was repeatedly informed of the problems during this entire period and did nothing. But since the statute doesn't require that, there's no way we're going to give plaintiff a total windfall of nearly a half million dollars -- plus attorney's fees -- for what some would call "setting up" the City. We're going to narrowly interpret the penalty provision so that "each offense" is more limited. Or, alternatively, the holding is going to be that it's a violation of due process to impose such severe penalties in the absence of something special (e.g., mens rea).
I'm sufficiently confident of this answer that I might not have certified the question.
Or perhaps I'm just sufficiently confident in the justness of the answer.
